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Toka v The State [2005] FJHC 171; HAM0037J.2005S (6 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. Case No: HAM0037 of 2005S

Between:

KALIOPATE TOKA
Appellant

And:

THE STATE
Respondent

Hearing: 5th July 2005
Judgment: 6th July 2005

Counsel: Appellant in Person
Mr. A. Ravindra-Singh for State

JUDGMENT

This matter was initially couched as a bail application. However, on a perusal of the Appellant’s letter to the Chief Registrar, of the 16th of May 2005, it was apparent that he wished to appeal against the learned Magistrate’s two refusals of bail in the lower court. I have therefore treated this as a bail appeal.

The Appellant is charged on 14 counts in the Suva Magistrates’ Court. 11 of these counts are for robbery with violence, one is for unlawful use of motor vehicle, one is for throwing object and one for damaging property. All charges relate to the 16th of April 2005. Count 2 relates to the robbery of $52,000 from one Hirdeshwar Prahalad. State counsel informs me that this count relates to the robbery of a supermarket. The charge (count 13) of throwing object alleges the throwing of stones at a police officer, and the charge (Count 14) of damaging property relates to the damaging of a police vehicle.

The Appellant applied for bail twice in the lower court, once on the 2nd of May 2005 and secondly on the 6th of June 2005. The reasons for the first refusal are not clear from the record. The co-accused Suliasi Rapui, was granted bail, apparently with the consent of the prosecution. However, Mr. Rapui is only charged on one count of unlawful use of motor vehicle, so the grant of bail is unsurprising. The Appellant is charged with a series of robbery with violence offences.

The reasons for the second refusal of bail are that police investigations are continuing and that attempts are being made to recover the stolen money. The trial is scheduled to commence in the Valelevu Magistrates’ Court on the 16th of July.

In his oral and written submissions in court, the Appellant raised further grounds of appeal. He complained that the police had detained him for an unconscionable length of time during investigations, that he did not understand why he was charged, that the learned Magistrate had penalised him for speaking Fijian in the courtroom and that he had erred in refusing bail on no good grounds.

He submitted that he should have been granted bail because he needs to earn money (as a money-lender) to hire the services of a lawyer, that his farm at Kalabu is neglected whilst he is in remand, that the conditions of his custody are uncomfortable because of the daily length of the confinement, and that he is presumed innocent until proven guilty.

State counsel opposes this appeal. He points to the Appellant’s list of previous convictions (including one for escaping from lawful custody), the series of robberies he has allegedly committed, the value of the money listed in the charge sheet, the fact that the Appellant has no family ties nor fixed employment, and the fact that the trial is only a fortnight away.

I am considering bail in the appellate jurisdiction of the High Court. The question for me is whether the learned Magistrate erred in law in refusing bail. I do not consider that he did. I disregard the Appellant’s list of previous convictions. Indeed, the learned Magistrate failed to mention character at all and clearly found the previous convictions irrelevant. The last conviction is over 15 years old.

However, the Appellant is alleged to have robbed various complainants of a very large sum of money. The police are still looking for it. The learned Magistrate was entitled to take this account when deciding on bail. Other factors which militate against bail (but which were not referred to by the learned Magistrate) are the seriousness of the offences charged and the number of them.

I accept that the Appellant finds confinement very uncomfortable. However, his trial is due to commence in a fortnight’s time, and the total period of remand, of 3 months is not unconscionable.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th July 2005